United States District Court, N.D. Mississippi, Greenville Division
ORDER GRANTING MOTION TO DISMISS
MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE
Wendell Duncan, a prisoner proceeding pro se, has
filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254, seeking to challenge issues surrounding
his parole eligibility and earned-time calculation.
Respondent has moved to dismiss the petition, and Duncan has
failed to respond to the motion. The time to do so has
passed, and this matter is ripe for review. For the reasons
set forth below, Respondent's motion will be granted.
and Procedural History
Duncan is an inmate housed in the Mississippi Department of
Corrections (“MDOC”), pursuant to four
convictions and sentences he received in the Circuit Court of
Washington County, Mississippi: (1) a 1994 conviction for
burglary of a business and conspiracy to commit burglary of a
business, to which he was sentenced as an habitual offender
to serve consecutive terms totaling twelve years; (2) a 1995
armed robbery conviction, to which Duncan was ordered to
serve thirty years as a non-habitual offender, with the
sentence to run consecutively to the previously imposed
twelve-year sentence; and (3) a 1995 guilty plea to simple
assault on a law enforcement officer, to which Duncan was
sentenced to a five-year term as an habitual offender, with
the sentence to run consecutive to Duncan's other
sentences without eligibility for parole. See Docs.
#13-1, #13-2, & #13-3.
November 17, 2016, MDOC forfeited a total of 1, 260 days of
Duncan's accrued earned time, because of state and
federal actions filed by Duncan that were dismissed as
frivolous. See Doc. #13-5. On August 8, 2017, Duncan
was granted parole on his thirty-year sentence for armed
robbery and began serving his mandatory five-year sentence
for simple assault on a police officer. See Doc.
#13-4. On October 6, 2017, MDOC forfeited an additional 180
days of Duncan's accrued time due to the dismissal of a
lawsuit deemed frivolous. See Doc. #13-5.
engaged in near-continuous litigation in state and federal
courts, arguing that MDOC's calculation of his time is
incorrect. See Docs. #13-9 through #13-20 &
#13-22 through #13-25. He also filed numerous grievances
concerning the issue through MDOC's Administrative Remedy
Program (“ARP”), often filing new grievances
before older ones could be addressed, thereby creating a
backlog of ARP filings. See Doc. #13-6 through
#13-8, #13-31, & #13-26.
about January 5, 2018, Duncan filed this federal habeas
action, challenging MDOC's calculation of his earned time
and the fact that he has not been granted release on parole.
Doc. #1. Specifically, Duncan claims that his due process
rights were violated when he was not granted parole on July
10, 2016, as if he had been paroled on his eligibility date,
MDOC would have been unable to take his earned time on
November 17, 2016 for filing frivolous lawsuits. See
habeas relief is available to Duncan only on the ground
“that he is in custody in violation of the Constitution
or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a); Irving v. Thigpen, 732 F.2d 1215,
1216 (5th Cir. 1984). The issues of whether Duncan was
improperly denied parole until August 8, 2017, and whether
MDOC improperly calculated or forfeited his earned time are
not constitutional claims upon which habeas relief may be
granted. A federal habeas action “based on any argument
that state courts are incorrectly applying their own law. . .
is not a basis for [federal habeas] relief.”
Wansley v. Miss. Dep't of Corrs., 769 F.3d 309,
312 (5th Cir. 2014).
federal law, there is no recognized right to parole. See
Greenholtz v. Inmates of Nebraska Penal and Corr.
Complex, 442 U.S. 1, 7 (1979) (“There is no
constitutional or inherent right of a convicted person to be
conditionally released before the expiration of a valid
sentence.”). Under Mississippi law, absolute discretion
regarding parole decisions rests with the Parole Board.
See Miss. Code Ann. § 47-7-1, et seq.;
Mitchell v. State, 561 So.2d 1037, 1039 (Miss. 1990)
(“The granting of parole or denial of parole. . . is
the exclusive responsibility of the state parole
board[.]”). Both the Mississippi Supreme Court and the
Fifth Circuit have held that Mississippi's permissive
parole statutes do not create a liberty interest that will
support a habeas action for failure to parole. See Davis
v. State, 429 So.2d 262, 263 (Miss. 1983) (holding that
the Mississippi parole law provides only “a mere hope
that the benefit will be obtained”); Scales v.
Mississippi State Parole Board, 831 F.2d 565, 566 (5th
Cir.1987) (citing Irving v. Thigpen, 732 F.2d 1215,
1217-1218 (5th Cir.1984)(holding “the Mississippi
[parole] statute does not create any constitutionally
protected liberty interest in parole to which procedural due
process considerations attach”)); see also
Miss. Code Ann. § 47-7-1, et seq. As the Fifth
Circuit has noted, “when a prisoner has no liberty
interest in obtaining parole. . . he cannot complain of the
constitutionality of procedural devices attendant to parole
decisions.” Wansley, 769 F.3d at 213-13.
Therefore, the Court finds that Duncan's challenge to his
parole eligibility prior to the date he was actually paroled
to his mandatory five-year sentence is unavailing. Duncan has
failed to raise a federal issue for relief.